Photograph by Felipe BuitragoSpeaking Volumes: James Zahradka represented the Public Interest Law Firm when they sued Santa Clara County in federal court for closing its jail law libraries.

Banned Books

Santa Clara County has gotten itself in hot water for closing its jail law libraries

By Vrinda Normand

NAVIGATING the intricacies of the law can be like stumbling through a labyrinth. Even with eight years of experience as an attorney, James Zahradka of the Public Interest Law Firm is still turning new corners.

On a sunny afternoon in April, he gives this reporter a guided tour of the legal maze at the Santa Clara County law library just north of downtown San Jose. A dozen waist-high bookcases on the first floor and three stories of dimly lit book stacks seem daunting to the untrained observer.

Zahradka tells me that the fat volumes in the reference section are filled with federal, state and local statues. These are the bare bones of the law that include annotations or miniexplanations pointing to other sources.

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They might lead upstairs to shelves lined with treatises or book-length essays that interpret areas of the law. Or they'll refer to previous cases in which judicial decisions have shaped the way the law is applied—more thick volumes encompassing over 100 years of American history as it played out in the courts.

However daunting the library might be, imagine trying to attempt this kind of complicated legal research without it—from a jail cell. No books, references or librarians.

As Zahradka says, "It seems incomprehensible."

That's what he tried to convince Judge Ronald Whyte of in federal court last year when the Public Interest Law Firm (PILF) sued Santa Clara County for closing its jail law libraries. Since 1973, the county had been required by a federal court order called a consent decree to provide inmates with this legal resource.

The order resulted from the original PILF suit, filed about the same time Zahradkha was born in 1971, which defended the inmates' constitutional right to have access to the courts if they chose to go "pro per." or represent themselves.

But in 2003, the county decided law libraries in the jails weren't cost effective. So they called the consent decree outdated and replaced the books with Legal Research Associates, a remote contract service that sends inmates photocopies of limited legal materials upon request.

Under the new system, pro per inmates who have no legal training must start their research with a blank form.

"They keep running into walls," Zahradka says. "They don't know where to go." He explains that it often takes a week just to get a response from LRA, which might be fruitless.

Minus three years of law school, pro per inmates already start out with a "huge handicap," he says. "At the very least, they should have the same materials we have."

Extreme Prejudice

When the attorneys at the PILF learned that the county's Department of Correction had closed its law libraries, they pulled together a class action lawsuit with the testimonies of seven pro per inmates who expressed frustration and dissatisfaction with the new legal research service. Inadequate resources, the criminal defendants said, had prejudiced their cases and severely hampered their abilities to represent themselves.

When he made his declaration for the PILF lawsuit, Shawn Bautista was in the process of preparing his own defense for drug-related charges. He had previously represented himself when the law library was still open, and in comparison, he found the LRA service to be "unhelpful and unnecessarily time-consuming."

"Research that takes me two weeks using LRA would take me approximately two hours using
a law library," he said.

Bautista said it took him about seven days to receive materials he requested. One time, LRA's response was so delayed that he missed the 10-day deadline for filing an important legal document.

He also said LRA refused to provide him with several "secondary sources" (used to interpret the law), which would have helped him file more compelling motions in his case. Other requests for legal materials were thwarted for arbitrary reasons, such as changed book section numbers.

On numerous occasions, Bautista asked for specific guides and indexes and received only general questions about the issues he was researching. LRA finally sent a few of these materials (some were denied) after he repeatedly submitted the same requests.

Another inmate named Barth Capela went pro per in 2003 after he became disappointed with his public defender. He made this decision, he said, with the assumption that he would have access to a physical law library. His unfortunate timing (the same year the DOC shut down the libraries) forced him to rely on LRA.

Before he went to trial, Capela twice requested information to help him argue that the district attorney had improperly filed additional felony charges against him after the preliminary hearing. He received no useful response until he made a third request after the trial, which informed him that the late charges were objectionable, but he had waived his right to protest them by proceeding with trial.

Capela said LRA also failed him during trial, when he needed information about crucial procedures and couldn't wait a week for a response. He staggered through the court proceedings without support and was convicted of attempted robbery—one of the late charges that he could have contested had he had better access to legal resources.

Capela made his declaration for the PILF lawsuit from Vacaville State Prison.

Frivolous Until Proven Necessary

The pro per pitfalls that the PILF presented to federal Judge Whyte last fall were not enough to sustain the court order that had required law libraries for the past 30 years.

"Prisoners fail to offer concrete evidence that LRA's flaws, and not some other factor, frustrated their claims," Judge Whyte ruled. "There is no evidence that prisoners suffered 'actual injury' because of LRA."

Judge Whyte concluded that the "alleged inadequacies" of LRA are not "constitutional deficiencies;" therefore, the county jail does not have to maintain a law library in order to meet the inmates' basic legal rights.

But inmate advocates question Judge Whyte's interpretation of what fulfills "reasonable access" to the courts.

David Fathi of the ACLU's National Prison Project says the large majority of jails across the country offer law libraries "for very good reason."

"I'm an experienced lawyer, and I couldn't practice without a law library," he says. "So to expect a lay person to represent himself without one is completely unrealistic."

He adds that depriving criminal defendants of a peaceful means to settle their conflicts through the legal system is "ironic beyond belief."

San Francisco County provides its jail population (which is half as large as Santa Clara County's) with law libraries and a special legal program staffed with three full-time attorneys and a handful of law students. Sheriff Michael Hennessey started the program when he took office in 1981 because he says he found that "having access to a live person for legal advice reduces tension and complaints."

Among other things, the attorneys give inmates guidance in their legal research, explain charges and court proceedings and educate them on how to represent themselves.

"The whole idea is to make the library more user-friendly by having lawyers on-site," says program director Teresa Nelson.

Because of their disadvantaged position in the Santa Clara County jail, Zahradka believes Judge Whyte held the inmates to an unfair standard. "It's their constitutional right to represent themselves," he says. "The question is, how do we make that law meaningful so they can actually do that?"

Making It Right

Although Judge Whyte terminated the consent decree in the fall of 2005, he held the county in contempt for prematurely closing the law libraries in 2003. He told both parties to try to resolve the matter independently of the court.

PILF director Kyra Kazantzis says her firm suggested the county pay a $240,000 fine plus attorneys fees for violating the court order. The money from the fine would pay for a very small law library with seven sets of books "to give inmates some way to start their legal research," she says.

Any additional funds would support the creation of a manual on how to conduct legal research.

But Kazantzis says her discussions with county counsel didn't get very far. "They told us they didn't want us or the court looking over their shoulders," she says.

Deputy County Counsel Aryn Harris argues that the fines proposed by the PILF are unwarranted. "The type of remedy they want is for when there's been some kind of harm," she says.

"Even though we were in violation of the court order," she continues, "We were not in violation of the spirit of the law. Our system meets the constitutional minimums."

Unable to reach an agreement on their own, the PILF and the county counsel are waiting for Judge Whyte to make the final call.